CHAPTER XVI

SUBMISSION OF AMENDMENTS

[§1. Necessity of submission of convention
result to ratification by the people.]

{193} OF the original
constitutions of the thirteen colonies, only those of New Hampshire and
Massachusetts were formally submitted to a vote of the people, although in
several other instances an informal canvass was made. The Vermont constitution
of 1786 and the Georgia constitution of 1789 were ratified by different bodies
from those that framed them, these second bodies being chosen by a direct vote
of the people for that purpose. The New Hampshire constitution of 1792, the
Connecticut constitution of 1818, and the Maine constitution of 1819 were
submitted to a popular vote. New York followed in 1821. The popular submission
of constitutions first developed in New England, largely, it would seem,
because there alone the people had in their town meetings workable instruments
for the expression of popular sentiment upon such a question.1 This policy soon became general, although it
received a setback in the South during the Civil War, doubtless because of fear
of the negro vote. Most of the reconstruction constitutions were voted on by
the people, although secessionists were excluded from voting. Since 1890
fourteen State constitutions have been adopted. Seven of these were submitted
to a vote of the people; six were adopted without submission; and one, that of
Kentucky in 1891, was altered by the convention after it had received the
popular approval.2

Dodd says:

In view of the facts discussed above, I think that it is
impossible to assert, as Judge Jameson did, that the submission of a
constitution to a vote of the people is imperatively required by some customary
constitutional law of this country, or even to say that {194} a legislature in
calling a convention may effectively bind such a body to submit its work for
the approval of the people. We are, then, forced to the conclusion, that at
present the only rules positively binding a convention to submit its
constitution to the people are those contained in the constitution which the
convention may have been called to revise. Of the thirty-four state
constitutions which contain provisions regarding constitutional conventions,
seventeen require that constitutions framed by such conventions be submitted to
the people. As has been suggested, however, all of the states, with the
exceptions just referred to, have followed the same rule since 1840. Of only
two states  Delaware and Mississippi  may it be said that the
practice is opposed to a convention's submitting the results of its labors to a
vote of the people.3

[§2. Instances of convention refusing to submit
its changes to the people.]

There are no recorded instances of a convention refusing to submit the fruit
of its labors to the people when required by express constitutional provision.
There have been instances, however, in which conventions have disobeyed similar
express requirements of the convention act. But, if a convention act voted on
by the people acquires from this vote a supraconstitutional force,4 it would seem that its provisions ought to be
even more binding than those of the constitution.

In Virginia, in 1901, the question of holding a convention was voted upon by
the people as required by the constitution of 1870; and the subsequent
legislative act authorizing the convention provided that the constitution
framed by it should be submitted to a vote of the people. However, the
convention did not submit its constitution, largely, it would seem, for fear of
its being defeated by the elements to be disfranchised, in combination with
interests adversely affected by the new constitution.5 The general sentiment of the bar of the State
was that the second act, not having been voted on by the people, was not
binding upon the convention.6

The Illinois convention of 1847 declared one article of the constitution to
be in force without submission to the people, although the convention act
(purely legislative in its character) required the submission of all
amendments.7

{195} These really are the only instances of conventions disregarding the
convention act in this respect, although Dodd also cites that of the Kentucky
convention of 1890-1891.8 This case
however, falls under the implied power of a convention to codify and perfect
its constitution after ratification by the people,9 for the Kentucky convention did obey the
requirement that it should submit its constitution to the people. But even if
we consider this case as an instance of disregard of the convention act, it may
be differentiated because of the fact that the Kentucky act was the creature of
the legislature alone and hence might properly be disregarded by the
convention. Both the Kentucky and Virginia courts recognized these
constitutions as valid; basing their recognition, however, on popular
acquiescence rather than on the validity of the proceeding itself.10

[§3. Popular submission if convention
extraconstitutional or convention act by people requires it.]

The provision for popular submission contained in a convention act which has
not been voted on by the people has, nevertheless, been declared by the
Pennsylvania Supreme Court to be binding, on the ground that the people elected
their delegates under the act, relying on its terms. The court said:

When the people voted under this law, did they not vote for
delegates upon the express terms that they should submit their work to the
people for approval? Did not every man who went to the polls do so with the
belief in his heart that, by the express condition on which his vote was given,
the delegates could not bind him without his subsequent assent to what the
delegates had done? On what principle of interpretation of human action can the
servant now set himself up against the condition of his master and say the
condition is void? Who made it void? Not the electors; they voted upon
it.11

We have already seen that it is the general custom to submit constitutional
changes to the people, even when not required by the express terms of the
convention act. In fact, there have been expressions of opinion to the effect
that the action of an extraconstitutional convention has no validity until
ratified by a popular vote. Thus Ruling Case Law says:

{196} The new constitution prepared by a convention derives its
force from the action of the people and not from that of the legislature which
may have issued the call for the constitutional convention.12

Judge Morton of the Massachusetts Supreme Court said, in the Massachusetts
convention of 1853:

If the people choose to adopt what we submit to them, it then
becomes authoritative  not because it comes from a legally constituted
body, but because the people choose to adopt it.13

But both of these proceeded upon the theory that it was the legislature
alone which called the convention. If that be true, then certainly the work of
the convention must be submitted to the people, in order to give the convention
any standing at all.

[§4. Time of submission of convention result to
ratification by the people.]

Having discussed the question of necessity of submission, we next
come to the question of time of submission. When the determination of
the time for submission has been left to the convention, has the legislature
the power to change it? The Lecompton controversy in Kansas arose on just this
point. The convention, which was pro-slavery, arranged for the submission of
two alternative forms of its constitution at an election to be held in
December, 1857. Thereupon the free-state legislature, which convened four days
before the date set for this election, voted to submit the constitutions in
January. Only slavery men participated in the first election and only
free-staters in the second, with the result that the most pro-slavery of the
two constitutions was carried in December, and both were rejected in January.
No decision was reached as to which was the valid action, for President
Buchanan and the national Senate deadlocked with the national House on the
question.14

For the legislature to change the time for submission, if the time was set
by the people, would amount to an illegal attempt at amending the convention
act;15 and regardless of the source
{197} of the act, would amount to an illegal attempt to restrict the
convention.16

A somewhat similar question, however, arose more recently in New Hampshire.
The question involved was as to the time of taking effect of the amendments
proposed by the convention of 1889. The Supreme Court held that although this
question was a matter primarily for the legislature, yet as the convention had
acted and issued an ordinance decreeing that the amendments should take effect
when voted on, the amendments had so taken effect, and it was thereafter too
late for the legislature to change the date. This opinion, although delivered
in 1889, was not published in the New Hampshire reports until 1911.17 This same opinion points out that the practice
in New Hampshire has been for the legislature to delegate to the convention the
legislative power of determining when the amendments should take effect. If no
time were fixed, the amendments would take effect upon their ratification.

A Constitution, or an amendment, takes effect on the day of its adoption by
the people, unless otherwise provided in the existing Constitution, or by the
Convention acting under legislative authority.18

When the time for submission is prescribed by the convention act, can the
convention change the time? This must needs be within the inherent powers of a
convention, even though the convention act be popular rather than legislative.
Otherwise, the whole procedure might come to nought because of a technical
restriction. Such restrictions are directory rather than mandatory, the main
object being submission to the people at some time, rather than submission at
any particular time or not at all. Thus the New York convention of 1867 sat
beyond the time fixed by the convention act for its work to be submitted to the
people, for the simple and compelling reason that its work had not then been
completed.19

The Michigan convention of 1907-1908 was required by a purely legislative
convention act to submit its constitution at the April election of 1908. The
convention decided to submit at the November election of that year, and by
mandamus {198} forced the Secretary of State to recognize that the convention
and not the legislature was the master.20

[§5. Convention may submit its constitutional
changes together or separately.]

The next question to be considered is: Need the convention submit its
constitutional changes en bloc? That this question should arise at all
is probably due to the idea that there is something inherently different
between a new constitution and an amended constitution. But as
the Supreme Court of Rhode Island has well said:

Any new constitution, therefore, which a convention would form,
would be a new constitution only in name; but would be in fact our present
Constitution amended. It is impossible for us to imagine any alteration,
consistent with a republican form of government, which cannot be effected by
specific amendment as provided in the Constitution.21

But in spite of this, there have been a number of adverse expressions of
opinion, which can all, however, be traced to a misconception of the famous
opinion of the justices of the Massachusetts Supreme Court of 1833.22 Thus Dodd erroneously says:

The Massachusetts judges thought that there was no power to
adopt specific amendments except in the manner provided by the constitution,
but did not express any opinion upon the question whether a convention might be
called for a general constitutional revision; their opinion cannot therefore be
cited in support of the view that a convention may not be called for a general
revision without constitutional authorization, and such a convention was in
fact held in Massachusetts in 1853.23

Yet what the Massachusetts Supreme Court really said was this:

The court do not understand that it was the intention of the
House of Representatives to request their opinion upon the natural right of the
people in cases of great emergency, or upon the obvious failure of their
existing constitution to accomplish the objects for which it was designed, to
provide for the amendment or alteration of their fundamental laws; nor what
would be the {199} effect of any change and alteration of their Constitution,
made under such circumstances and sanctioned by the assent of the people. Such
a view of the subject would involve the general question of natural rights, and
the inherent and fundamental principles upon which civil society is founded,
rather than any question upon the nature, construction, or operation of the
existing constitution of the Commonwealth, and the laws made under it. We
presume, therefore, that the opinion requested applies to the existing
constitution and laws of the Commonwealth, and the rights and powers derived
from and under them. Considering the questions in this light, we are of
opinion, ... that, under and pursuant to the existing Constitution, there is no
authority given by any reasonable construction or necessary implication, by
which any specific and particular amendment or amendments of the Constitution
can be made, in any other manner than that prescribed in the ninth article of
the amendments adopted in 1820.24

Jameson construes the phrase "specific and particular amendment or
amendments" as follows:

The force of these quotations may be better apprehended by
considering what the Convention meant by a "specific amendment."
Undoubtedly it meant an amendment which had been distinctly formulated in its
terms in the public mind, and one of which the necessity had been generally
acknowledged, in contradistinction from a change, indeterminate in its
character and extent, which might be shown to be advisable upon a revision of
the whole Constitution. A specific amendment, being a definite proposition,
might safely be submitted to the people to pass upon, yes or no; for it
required no modification to adjust it to possible changes in other parts of the
same instrument. Not so with an indeterminate amendment, to be matured by
discussion, and after multiplied adjustments, and which might turn out to be a
single proposition, or a few simple propositions, or a completely new
Constitution. For such a work only a Convention is adapted.

Recurring, then, to the question whether, where a Constitution contains no
provision for amendments save in the legislative mode, a Convention can be
called, the answer must be, both upon principle and upon precedent, that a
Convention can be called, certainly when a revision of the whole Constitution
is desired, to determine what amendments, if any, are needed, or, if deemed
advisable, to frame a new Constitution. In general, whenever a Convention is
called, the intention is to authorize a revision of {200} the entire
Constitution, though upon its meeting, the result of its labors may be only to
recommend specific amendments.25

[§6. Distinguishing replacement from revision or
amendment.]

The phrase "specific and particular amendment or amendments" is
the exact phrase used in the amending clause of the present Massachusetts
constitution. It is a technical phrase of Massachusetts constitutional law and
means no more or less than the mere word "amendment." It has always
been so recognized in that State, as is shown by the fact that every attempt to
establish a new method of constitutional amendment has always used the whole
phrase. Thus, according to Jameson's interpretation and to the practice in
Massachusetts, any definite constitutional change, from the
establishment of a complete new constitution down to the changing of a mere
comma would be a specific and particular amendment.

The real distinction drawn by the Massachusetts Supreme Court was not
between single amendments and a general revision of the constitution, but was
between constitutional and extraconstitutional methods of revision. The Supreme
Court very decidedly does not refer to the extraconstitutional method as
consisting only in a general revision of the constitution, but on the
contrary refers to it as "the amendment or alteration of their fundamental
laws" and as "any change and alteration of their constitution."
That this is the view held by constitutional lawyers in Massachusetts is seen
by the following quotation from a very recent local law article:

It was assumed in the opinion, that the opinion requested
applies to the existing constitutions and laws of the Commonwealth and the
rights and powers derived from and under them, and did not depend upon the
natural right of the people in cases of great emergency, or upon the obvious
failure of their existing constitution to accomplish the objects for which it
was designed, to provide for the amendment and alteration of their fundamental
laws.26

It is also seen from the fact that the voters of Massachusetts, in calling
the convention of 1917, voted on the question: "Shall there be a
convention to revise, alter or amend the constitution of the
Commonwealth?"27 The affirmative
vote on {201} this question clearly authorized the convention to submit
separate amendments. So also the convention act provides:

Any such revision, alterations or amendments, when made
and adopted by the said convention, shall be submitted to the people for their
ratification and adoption, in such manner as the convention shall
direct.28

The use of the word "amendments" in the plural shows that the
submission of separate amendments was within the contemplation of the act, and
the convention is authorized to use its discretion in this matter by the words
"in such manner as the convention shall direct."

The convention to be held in Indiana in 1918, although called for the
purpose of framing an entire constitution, is expressly authorized by the
convention act to submit any question separately.29

[§7. Conventions too cumbersome and expensive
for minor changes.]

The only real distinction between a general revision and revision by
separate amendments is that the constitutional convention would be too
expensive unless there were a lot of changes to be made. As Judson says:

The convention is a very proper form of organization for framing
a complete constitution. It is, however, obviously too cumbersome and expensive
a thing for mere amendment, unless, indeed, the amendment in question should be
of extraordinary importance.30

Dodd takes the same view in the following language:

The discussion heretofore has been based upon the general view
that constitutional conventions are employed for the complete revision of state
constitutions or for the framing of new constitutions, and that, where a
general revision is not desired, the regular legislative machinery is used to
initiate specific amendments. This view is, in the main, correct. Yet of course
a constitutional convention when assembled may not make a general revision but
may simply propose specific amendments. In the state of New Hampshire specific
amendments may only be proposed by a convention. However, where only a few
changes are {202} desired the convention is an expensive and cumbersome
instrument which will not often be employed except in case of necessity. On the
other hand several constitutions make no provision for a convention, and in
Rhode Island the absence of such provision has been held to prevent the holding
of a convention so that here the legislative process is the only one available
for constitutional alteration.

May not the legislative power of initiating amendments be used in such a
manner as to propose a complete constitutional revision? This may be done where
the legislature is not restricted as to the number or character of amendments
which it may propose, but precedent is against the exercise of such power by a
legislature, although in Rhode Island this is the only way of obtaining a
complete constitutional revision. Two state legislatures have submitted to the
people revised constitutions in the guise of amendments, but in both cases the
legislative revisions were rejected. The Michigan legislature submitted a
revised constitution in 1874, and the Rhode Island legislature submitted the
same instrument twice, in two successive years, 1898 and 1899.

Judge Jameson has said as to the legislative method of proposing amendments.
"It ought to be confined, it is believed, to changes which are few,
simple, independent, and of comparatively small importance. For a general
revision of a Constitution, or even for single propositions involving radical
changes as to the policy of which the popular mind has not been informed by
prior discussion, the employment of this mode is impracticable, or of doubtful
expediency." Judge Jameson's point is purely one as to expediency, and it
is legally proper, it would seem, in the absence of specific constitutional
restrictions, to propose to the people by the legislative process any
constitutional alteration short of a complete revision, or even a complete
revision.31

The subsidiary question he touched on, namely the power of the legislature
to submit a whole constitution in the regular legislative method for submitting
amendments, should be distinguished from the question of the power of the
legislature to submit a whole constitution, acting like a constitutional
convention, which latter question was discussed in an earlier
chapter.32

[§8. Some arguments for and against separate
submission.]

Reverting to the question of separate submission, we find that Jameson
presents a strong argument in favor of separate submission:

{203} A Constitution may be wholly new, or it may be an old one
revised by altering or adding to its material provisions. It may, also, in a
hundred separate subdivisions, contain but a fourth of that number of distinct
topics, or each subdivision may be substantive and independent. It is obvious
that the submitting body, weighing accurately the public sense, may determine
whether the whole Constitution must stand or fall as a unit, or whether some
parts, being adopted and going into effect without the rest, the new system
would be adequate to the exigencies of the state, and may submit it as a whole
or in parts accordingly. But it is perfectly clear that every distinct
proposition not vital to the scheme as a whole, or to some other material part,
ought to be separately submitted. If it were not nearly impracticable, the best
mode would be to submit every distinct proposition separately, so that each
voter could vote yes or nay upon it, regardless of anything but its absolute
propriety.33

Nevertheless it is true that

In far the larger proportion of the cases in which submission
has been made, it has been of the instruments entire. This was naturally true,
in general, of all such as were the first constitutions of their respective
States.

The earliest departure from this mode was in Massachusetts, in 1780, in
which the Frame of Government and Bill of Rights were both submitted in such a
way as to enable the people to reject the whole or any part of either, ... a
course followed by all the subsequent Conventions in that State, though the Act
calling the Convention of 1820 left it to the discretion of that body to
determine the mode in which the submission should be made. The example set by
Massachusetts in 1780 was followed by New Hampshire in 1791, and in the
subsequent revision in 1850. The Acts calling the New York Conventions of 1821
and 1846 required those bodies to submit their proposed amendments to the
people, together or in distinct propositions, as to them should seem expedient.
Accordingly, the Convention of 1821 provided that they should be submitted
"together, and not in distinct parts;" and that of 1846, expressing
the opinion that the amendments it proposed could not be prepared so as to be
voted on separately, submitted them en masse excepting one, that
relating to "equal suffrage to colored persons," which was submitted
as a separate article. Under a similar discretion, the Pennsylvania Convention
{204} of 1837 submitted its amendments en masse. The Illinois Convention
of 1847 and 1862, and the Oregon Convention of 1857, pursued a course similar
to that of the New York Convention of 1846, submitting the great body of their
respective Constitutions entire, but a few articles relating to slavery, to the
immigration of colored persons, the public debt, and other subjects considered
of doubtful policy, separately.34

In 1820 a convention act was vetoed in New York, for the following reason,
among others:

Because the bill contemplates an amended Constitution, to be
submitted to the people to be adopted or rejected, in toto, without
prescribing any mode by which a discrimination may be made between such
provisions as shall be deemed salutary and such as shall be disapproved by the
judgment of the people. If the people are competent to pass upon the entire
amendments, of which there can be no doubt, they are equally competent to adopt
such of them as they approve, and to reject such as they disapprove; and this
undoubted right of the people is the more important if the Convention is to be
called in the first instance without a previous consultation of the pure and
original source of all legitimate authority.35

The more recent constitutional conventions which have been held have
proceeded in the following manner:

The Michigan convention of 1907-1908 submitted a new
constitution entire.36 The New
Hampshire convention of 1912 submitted twelve separate amendments of the old
constitution.37 The Ohio convention of
1912 submitted forty-two separate propositions.38 The New York convention of 1915 submitted a new
constitution and two additional separate propositions.39

See the following quotations on methods of submission:

Conventions may submit separate amendments to be voted on by the
people one by one or all together.40

{205} It lies in the discretion of a convention ordinarily as to whether its
work shall be submitted: 1, in the form of separate amendments to an existing
constitution; 2, as a complete new constitution; or 3, as a new constitution,
but with separate provisions which may be voted upon independently.41

Thus we may conclude that a constitutional convention may submit its changes
in whatever form it considers best adapted to ascertain and accomplish the will
of the people.

[§9. Power to change size and composition of
electorate to whom changes referred.]

A related question is the power of the convention to enlarge or reduce the
electorate to which it refers the amendments. Some constitutional provisions
and convention acts are specific on this point. Thus the act for the holding of
the Indiana convention of 1918 provides that the "new constitution shall
be submitted to the legal voters of the state of Indiana to be by them ratified
or rejected."42 Another act of the
same session extended the vote in this connection to women.43

On the other hand, the act for the holding of the Massachusetts convention
of 1917 merely provides that the amendments "shall be submitted to the
people for their ratification and adoption, in such manner as the convention
shall direct."44

In cases where the constitution has been held to apply to a convention, it
has been held that neither the legislature nor the convention has a right to
prescribe other qualifications than those set forth in the
constitution.45

Where the constitution does not apply, however, Dodd has pointed out that

In most of the cases in which constitutional provisions
regarding the suffrage have not been observed, there has actually been a
widening of the suffrage ... with reference to the vote for delegates to a
convention, and ... with reference to the popular vote upon a proposed
constitution.46

In many of the cases cited by Dodd the change was made by the legislature
rather than by the convention, but even these {206} serve to illustrate the
inapplicability of the constitutional qualifications of voters.

The convention which framed the original constitution of Massachusetts
extended the right of suffrage beyond that prescribed by the charter then in
force. The charter said:

Provided alwayes that noe Freeholder or other Person shall have
a Vote in the Eleccon of Members to serve in any Greate and Generall Court or
Assembly to be held as aforesaid who at the time of such Eleccon[1] shall not have an estate of Freehold in Land
within Our said Province or Territory to the value of Forty Shillings per
Annu[2] at the least or other estate to
the value of Forty pounds Sterl'.47

And the constitution framed by the convention increased these qualifications
fifty per cent as follows:

And at such meetings every male inhabitant of twenty-one years
of age and upwards, having a freehold estate within the commonwealth, of the
annual income of three pounds, or any estate of the value of sixty pounds,
shall have a right to give in his vote for the senators for the district of
which he is an inhabitant.48

Nevertheless, the various towns, on the recommendation of the legislature,
permitted all adult freemen to vote for delegates; and the convention,
following the same recommendation, chose the adult freemen as the electorate to
represent the people, in passing upon the proposed constitution.

[§10. Instances in which electorate has been
altered for purpose of voting on constitutional changes.]

It may be well to give a tabulation of some instances in which the
electorate has been altered for the purpose of voting on constitutional
changes:

In the following case the legislature plus the electorate extended the
electorate: New York (1821).49

Two of these conventions reduced the electorate in some particulars as well
as extending it in others: Tennessee (1834),63 and Arkansas (1868).64

Electorates have also been reduced by oaths of allegiance required by
reconstruction acts, and by the following conventions:

Maryland (1864), Missouri (1865), New York (1867).65 Such oaths have been held to be ex post
facto laws, when required as a condition precedent to holding office or
pursuing certain lines of business.66
But, as voting is not a property right, it is to be doubted if the principle of
these cases would be extended to prohibit the application of the same
restriction to voters.

[§11. Alteration of electorate by
convention.]

The Supreme Court of Missouri has, in the following language, sustained the
validity of the ordinance of the convention of 1865, which reduced the
electorate to those who could take the test oath:

As the representatives of the people, clothed with an authority
so ample as that, certainly its power to prescribe the means by which it was
thought best to ascertain the sense of the qualified voters of the State upon
that instrument cannot be seriously questioned. The ordinance had in itself
every element necessary to give it legal force and effect, and was therefore
binding upon the voter.67

The Justices of the Supreme Court of Massachusetts have, however, recently
given an opinion which apparently holds that the electorate prescribed by the
constitution for voting for certain mentioned offices and on amendments
submitted by the {208} legislative method is the only electorate which can vote
under the convention method. They first say:

The validity and powers of this convention are not necessarily
involved in these questions. Without discussing that subject, we are of opinion
that ... if the convention to revise and alter the Constitution is held under
the Constitution, etc.

This is their premise, assumed by them merely for the purposes of argument;
doubtless because they rightly felt that, if the convention is authorized by
some extraconstitutional power, they, the justices of the court, being
constitutional officers, would have no right to pass upon any questions
involved. Acting on the foregoing premise, namely, that the convention is held
under the constitution, which however they refuse to decide, the
justices say:

The Constitution of Massachusetts in its original form defined
the qualifications of the electorate. Chapter 1, Section II, Article II;
Chapter 1, Section III, Article IV. These qualifications have been modified by
Articles III, XVII, XX, XXVIII, XXXI and XXXII of the Amendments. The words of
the Constitution as it now stands are "Every male citizen of twenty-one
years of age and upwards, excepting paupers and persons under guardianship, who
shall have resided within the Commonwealth one year, and within the town or
district in which he may claim a right to vote six months next preceding any
election ... shall have a right to vote" for governor and other officers.
Although these provisions in express terms relate only to the qualifications of
voters for the elective officers therein named, it is a necessary and
imperative implication that these electors and these only can be treated as
qualified to vote to change the Constitution. The words "qualified
voters" as used in Article IX of the Amendments, wherein are the
provisions for amendments to the Constitution, mean the voters qualified
according to the requirements of the Constitution. It is an essential and
inevitable limitation upon the power vested in the legislative body of a state
established by a written Constitution that it cannot provide for the revision
or change of the frame of government except in a lawful and orderly method and
by the body of electors determined according to the terms of that frame of
government. The "people" who have a right to vote upon any essential
aspect of that revision and change, either for members of the convention or the
acceptance {209} or rejection of its work, are the people who have a right to
vote for state officers and upon state questions, namely, the voters as
described by the Constitution itself. It is elementary that the existing
Constitution continues in full force and effect until changed or destroyed by
act of the sovereign people. It seems indisputable that there is no power under
the Constitution, except the sovereign people acting in accordance with their
self-imposed, limiting methods of procedure, to enlarge the electorate so as to
include as voters persons not eligible to vote upon amendments to the existing
Constitution. ... The Legislature can proceed only under the Constitution. It
would be contrary to its duty to that Constitution to provide for its revision
or alteration by a body of electors, whose qualifications were different from
those ascertained by the terms of that Constitution. The power of the
Legislature to enact that women may be members of or vote for local or other
subordinate boards of officers (See Opinions of Justices, 115 Mass. 602;
136 Mass. 578) is of a different character. The existence of that power
touching officers created by the Legislature affords no basis for argument that
like power exists to change the electorate established by the Constitution for
state affairs.68

[§12. Arguments against alteration of electorate
by convention.]

In opposition to this opinion, it may be argued as follows:

First, the court is proceeding upon a premise which is rather
questionable, and on the validity of which the court is therefore wise in
refusing to pass, namely, that the constitution authorizes a popular
convention.69

Secondly, the court assumes, as its second premise, that the
constitution of Massachusetts establishes an "electorate for state
affairs"; whereas it is arguable from an inspection of that instrument
itself, that the electorate which it establishes relates merely to the election
of certain specified State officers, and possibly to the ratification of
amendments submitted by the legislature.70 The theory that the constitution, by
prescribing an electorate for certain officers, thereby impliedly
prescribes the same electorate for all State affairs, may well be
a violation of the principle of construction of instruments, that the express
mention of one thing amounts to {210} an implied exclusion of all
else.71 This opinion of the
Massachusetts court, if carried to its logical conclusion, would render invalid
the partial suffrage laws, whereby in many States women may, by legislative
act, vote for such State officers as are not expressly mentioned in the
constitution,72 which laws have been
held valid in actual litigation.73

Thirdly, the court ignores all of the instances in which, with
uniform success, legislatures and conventions have enlarged or reduced the
electorate.74 Is it not arguable that,
if there had been any doubt of the legality of such changes, it would have been
raised in the courts before this?

Fourthly, the court's opinion is sustainable upon another ground than
that mentioned by them, namely, upon the ground that the legislature cannot
amend what the people have enacted.75

For these reasons, we may well wait for a decision by the Massachusetts
court in a litigated case,76 before
concluding that this is their final view on the subject. The last above reason
suggests a related ground on which the court might have based its opinion, and
which if valid, would bar the convention from changing the electorate, although
it would not have barred the inclusion of such a change in the original act.
The ground is, that the voters, in adopting the act, used the term
"people" in its commonly accepted sense of "voters," and
that this use of the word is binding both on the legislature and the
convention. But on the other hand, it is equally arguable that this word was
used in the light of the many precedents in which conventions have picked what
electorate should represent the people.

Jameson discusses, as follows, the alteration of the electorate by a
convention:

{211} Of these, the largest proportion were cases in which
submission was made to the electors plus certain designated classes of
persons previously not entitled to vote at such elections, and the residue, of
cases in which submission was made to the electors minus certain classes
of persons thus entitled, according to existing laws.



In most of these cases the effect was, on the whole, doubtless to increase
the existing electorate. In five of them the Convention Acts expressly
authorized the Conventions to submit in the manner described, but in the
residue no such authority was given or pretended.

It is evident that in these cases, a new principle was introduced, namely,
that of submitting proposed changes in the fundamental law to persons other
than the body entrusted with the electoral function under existing laws; in
some cases, to citizens forming no part of the existing governmental system; in
others, to a part only of the citizens comprised in that system. Such a
submission, especially when made to persons not forming a part of the existing
electorate, it is conceived, was not only a novelty but a capital innovation,
upon which might hang, for the States concerned, the most weighty consequences;
and, unless the principles which ought to govern in the enactment of
fundamental laws are misconceived, it was unconstitutional and in the highest
degree dangerous.77

But the uniform success of such electoral changes shows that, even if
unconstitutional, they are nevertheless valid and effective. Besides, there is
no reason to suppose that a matter not covered by the constitution, and which
the constitution probably could not control if it tried,78 can be unconstitutional.

The Indiana constitution does not provide for the holding of conventions,
but does provide that only males shall vote on proposed constitutional
amendments. Nevertheless, the legislature has decreed that women may vote on
the constitutional amendments which may be submitted by the coming
convention,79 thus clearly showing that
the opinion in that State is to the effect that general constitutional
provisions relative to the qualifications of voters do not apply to amendments
submitted by an extraconstitutional convention.

{212} An objection is sometimes made that if the convention has the power to
enlarge the electorate in order to get a better expression of public
opinion, they have an equal power to reduce the electorate; and this is
urged in support of the theory that they have no power to tamper with the
electorate at all; but this argument can be met by quoting the following
passage from the Constitution of the United States:

The right of citizens of the United States to vote shall not be
denied or abridged by the United States, or by any state, on account of race,
color, or previous condition of servitude.80

[§13. Determination of method of conducting
ratification election.]

As to method of submission we have already seen that an extraconstitutional
convention has the power, after the submission of changes to the people, to
reconvene and codify the new constitution.81 The manner of conducting the election at which
the amendments are submitted is usually entrusted by the convention act to the
convention. And in this connection, the convention has the power to pass all
necessary incidental legislation.82 But
where the legislature attempts to prescribe the method, there is at least one
decision to the effect that the legislative provisions are binding,
particularly when ratified by the people.

The power claimed for the convention is, by ordinance, to raise a commission
to direct the election upon the amended constitution, in the city of
Philadelphia, and to confer power on this commission to make a registration of
voters, and furnish the lists so made to the election officers of each
precinct; to appoint a judge and two inspectors for each division, by whom the
election therein shall be conducted. This ordinance further claims the
power to regulate the qualifications of the officers thus appointed to hold the
election and to control the general returns of the election. It is clear,
therefore, that the ordinance assumes a present power to displace the
election officers now in office under the election laws for the city, to
substitute officers appointed under the authority of the convention, and to set
aside these election laws so far as relates to the qualification of the
officers and the manner in which the general returns shall be made, and in
other respects not necessary to be noticed. The authority to do this is claimed
under the fifth section {213} of the Act of 1872, giving the convention power
to submit the amendments, at such time or times, and in such manner as
the convention shall prescribe, subject, however, to the limitation as to the
separate submission of amendments contained in this act. It is argued that the
manner of submission confers a power to conduct the election upon the
matter submitted. To state the proposition is to refute it, for the
manner of submitting the amendments is a totally different thing from
conducting the election upon the submitted amendments.83

But the question was really one of the power of popular, rather than of
legislative, control. One final suggestion:

When the work of a convention is submitted, it would be
desirable to have mailed to each voter the text of proposals, together with
explanations. For a populous state this would be expensive, but the expense
would justify itself.84

From all the foregoing, we may deduce as follows: In the absence of popular
restrictions on the convention, or in the presence of authorization to
determine the manner of submission, the general authority of the convention
over the manner of submission will include the date of the election, the
election officials, the time at which the amendments shall take effect and even
the choice of the particular electorate who shall be employed by the convention
to represent the will of the people. The right to determine when the changes
shall take effect includes the right to decree that they shall take effect when
codified and promulgated by the reconvened convention.

70. Mass. Const., Amendments III, XVI;
XVII, and possibly IX. The Justices themselves say, in this very opinion:
"these provisions in express terms relate only to the qualifications of
voters for the elective officers therein named."